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2010 DIGILAW 83 (JHR)

Uma Rani Bose v. Massomat Sawarna Chakraborty

2010-01-14

AMARESHSWAR SAHAY

body2010
ORDER : Amareshwar Sahay, J. Heard Mr. V. Shivnath, learned senior counsel for the appellants. 2. This appeal has been filed against the judgment of reversal. 3. The trial court dismissed the suit on contest whereas the lower appellate court decreed the suit with respect to the lands contained in Schedule 'A' of the plaint and confirmed the possession of the plaintiffs over the same. 4. The facts, which are not in dispute, are that the lands of Khata No. 47 plot No. 405 area 3.60 acres of village Pipradih, P.S. Bermo, District Bokaro were acquired by Dhirendra Nath Bose from the ex-landlord of the village. The disputed land in Schedule 'A' of the plaint was the part and partial of the aforesaid plot No. 405. Abla Bala Bose is the widow of Dhirendra Nath Bose. Haridas Bose, the defendant No. 1, Krishna Das Bose, the defendant No. 2, Sukumar Bose, defendant No. 3, Santosh Kumar Bose, defendant No. 4, Paritosh Kumar Bose, the husband of defendant No. 5 and the father of defendant Nos. 6 to 8 are the sons of Dhirendra Nath Bose and Binapani Choudhary defendant No. 9 and Namita Rani Das, defendant No. 10 are the daughters of Dhirendra Nath Bose. The parties are governed by Daya Bhaga School of Law. There was a partition suit No. 2/1986, which was decreed but the plaintiff was not a party in the said suit. As per the plaintiff after the death of Dhirendra Nath Bose, his five sons and two daughters, named above, jointly inherited and succeeded all the properties left by Dhirendra Nath Bose including the lands of Khata No. 47, Plot No. 405. The widow of Dhirendra Nath Bose namely Abla Bala Bose sold the land described in Schedule 'A' of the plaint by a registered sale deed No. 1469 dated 14/03/1980, on receipt of valid consideration money for legal necessity and put the purchaser in exclusive possession of the said land and since then the purchaser, i.e. the plaintiff is in possession of the same. On the said sale deed Krishna Das Bose defendant No. 2, Sukumar Bose defendant No. 3 became the witnesses in the sale deed and Paritosh Bose, the husband and father of defendant Nos. 5, and 6 to 8 was the attesting witness. On the said sale deed Krishna Das Bose defendant No. 2, Sukumar Bose defendant No. 3 became the witnesses in the sale deed and Paritosh Bose, the husband and father of defendant Nos. 5, and 6 to 8 was the attesting witness. After purchase the plaintiff erected compound wall towards eastern portion of the suit land and also raised some other constructions like bathroom and also dug a well. Since the date of the purchase, the plaintiff is in peaceful possession over the suit land for more than 12 years and, therefore, has also acquired the title by adverse possession. Further according to the plaintiff, Abla Bala Bose also transferred some other lands of plot No. 405 to different other persons by executing different sale deeds and all the purchasers were put in khas possession thereof. 5. Further according to the plaintiff, the claim of defendant Nos. 1 and 3 to 9 regarding partition suit No. 2 of 1986 and its execution of decree regarding delivery of possession of the suit land to Bina Pani Chakraborty in execution of the decree, was not true and the plaintiff was not a party either to the suit or to the execution proceeding and, therefore, she filed a suit for declaration of right, title and interest and confirmation of the possession in the alternative for delivery of possession. 6. The trial court held that the sale deed executed in favour of the plaintiff was legal and the plaintiff was coming in possession of the suit land since the date of the purchase, i.e. 14/03/1980. Issue Nos. 8 and 9 were decided by the trail court against the plaintiff. 7. After going through the judgment of the appellant court, I find that he has rightly held that since the parties were governed by Dayabhaga School of Law and, therefore, after the death of Dhirendra Nath Bose, her widow was fully entitled to transfer the lands since her share was specific and fixed. She was competent to execute sale deed, i.e. Ext.-2. 8. After hearing Mr. V. Shivnath and on careful scrutiny of the judgment of the lower appellate court, I do not find any infirmity in the impugned judgment passed by the lower appellate court and, in fact, no substantial question of law arises for consideration in the present appeal. Accordingly, having found no merit, this second appeal is dismissed.